Thampi and Sobhana v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942** ## **CRL.A.No.352 OF 2005(C)** **AGAINST THE JUDGMENT IN SC 1310/2003 DATED 31-01-2005 OF ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM** ## **APPELLANTS/ACCUSED (A1 & A2):** **1 THAMPI, S/O. RAGHAVAN, IDAYILA PANTHIUIL VEETTIL, MARUTHAL CHERRY, THRIKKADAVOOR. 2 SOBHANA @ MAYA, D/O.SAROJINI, W/O.THAMPI, IDAYILA PANTHIYIL VEETTIL, MARUTHAL CHERRY, THRIKKADAVOOR.** ## **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.352 OF 2005** **2** ## **JUDGMENT** **Dated this the 12th day of November 2020** Appellants are the accused in S.C.No.1310/2003 on the file of Sessions Judge (Adhoc) Court-I, Kollam. Above case is charged sheeted by the Sub Inspector of Police, Anchalummodu, against the appellants alleging offences punishable under Sections 55(a) and (i) of the Abkari Act. 2. The prosecution case is that on 31.10.2000 at about 8.30 p.m., the accused and his wife were found in possession for sale of about 950 litres of spirit in 31 cannases and about 400 litres of arrack in 26 cannases in their residential house at Kuppana by name 'Idayil Penthiyil' in Ward No.V of Thrikkandavoor Panchayat in Murunthal cheri of Thrikkadavoor village. Hence it is alleged that the accused committed the offence. 3. To substantiate the case prosecution examined PW1 to PW9, and Exhibits P1 to P10 are the Exhibit marked on the side of the prosecution. MO I to MO X are **CRL.A.No.352 OF 2005** **3** the material objects. After going through the evidence and documents the trial court found that the 1[st] accused committed offence under Section 55(a) and (i) of the Abkari Act and the 2[nd] accused is found guilty under Section 55(a) of the Abkari Act. The sentence was also imposed separately. Aggrieved by the conviction and sentence this criminal appeal is filed. 4. The learned counsel for the appellants submitted that the 2[nd] appellant is no more. This Court directed the learned Public Prosecutor to get instruction about the same. The Public Prosecutor after getting instructions submitted that the 2[nd] appellant is no more, and she died on 14.08.2017. Therefore, the case against her is abated. 5. Heard the learned counsel for the appellant and the learned counsel for the appellants. 6. The learned counsel for the appellants submitted that the accused in this case is entitled acquittal for more than one reason. The counsel **CRL.A.No.352 OF 2005** **4** submitted that the admitted prosecution case is that 1[st] accused was not present at the time of seizure. The prosecution has not proved any thing to show that the 1[st] accused was in conscious possession of the contraband liquor. The counsel submitted that PW5 Village Officer produced Ext.P5 document. The counsel submitted that Ext.P5 will not show that the 1[st] accused was in possession of the building. The counsel submitted that Ext.P5 only shows that the 1[st] accused was residing in a house situated in Block No.2 of Thrikadavoor village in ReSy No.33/19. There is nothing to show that the place from where the contraband seized is in possession of the 1[st] accused. The counsel also submitted that the prosecution has not produced the forwarding note in this case. The counsel submitted that, that is a vital document in this case, and since that is not proved the prosecution will fail because there is no evidence to show that the seized articles reached in the hands of the analyst. The counsel also submitted that the property reached in the court only after three days as evident from Ext.P8 property list. That **CRL.A.No.352 OF 2005** **5** is also fatal to the prosecution. The counsel also submitted that there is no evidence to show that the 2[nd] accused arrested from the spot because the arrest memo is not produced. The counsel relied the judgment of this Court in _**Ramankutty v. Excise Inspector, Chelannur Range [2013**_ _**(3) KHC 308]**_ . The counsel also relied the judgment of this Court in _**Vikraman v. State of Kerala [2018 (1) KLT 822]**_ in which it is stated that unexplained delay of three days in producing the property is fatal to the prosecution. Moreover, the counsel relied the judgment of this Court in _**Chandran v. State [2016(4) KLT 727]**_ in which it is stated that, if an unauthorised person prepared inventory under Section 53 A of the Abkari Act, that itself is enough to acquit the accused. 7. The Public Prosecutor supported the judgment of the trial court. The Public Prosecutor submitted that there is oral and documentary evidence to prove the case. The Public Prosecutor submitted that this is a case in which prosecution established that the accused was in **CRL.A.No.352 OF 2005** **6** conscious possession of the contraband article. The Public Prosecutor submitted that huge quantity of spirit is seized from the house of the accused. The Public Prosecutor after instruction submitted that the 1[st] appellant in this case is undergoing sentence in a life imprisonment in another case in which he is convicted for Abkari offence and for Section 302 of IPC. The Public Prosecutor submitted that this Court may not acquit the 1[st] appellant in this case on technical grounds. 8. The points for consideration in this case is whether the appellants committed the offence under Section 55(a) and (i) of the Abkari Act. 9. Admittedly, the forwarding note is not marked in this case. Forwarding note is an important document in Abkari matter. The prosecution has to prove that the seized articles reached in the hands of the analyst for analysis. Simply because huge quantity of contraband articles are seized from the house of the appellants, there is no presumption that the same is spirit or liquor as **CRL.A.No.352 OF 2005** **7** defined in the Abkari Act. Unless there is evidence to show that the seized articles reached in the hands of the analyst, and the analyst declared that it is liquor as defined in the Abkari Act the offence will not attract. 10. In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases. 11. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are _**Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814) and Prakasan and another v. State of Kerala (2016 KHC 96)**_ . The relevant portion of the judgment in Gireesh's case (supra) extracted hereunder: - _“14. There is another lacuna in the prosecution case. The_ **CRL.A.No.352 OF 2005** **8** _copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16)).”_ 12. Admittedly, there is three days delay in producing the contraband articles before the court. This Court considered this point also in several judgments. Delay of even one day in producing the contraband article before the court is fatal to the prosecution. 13. Admittedly there is 3 days delay in producing the property before the court. There is no explanation from the part of the prosecution regarding the delay in producing the sample before the court. This point is also **CRL.A.No.352 OF 2005** **9** considered by this Court in _**Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352) and Vikraman v. State of Kerala (2018(1) KLT 822).**_ Relevant portion of the judgment in Ravi's case (supra) is extracted hereunder: _“8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt._ _9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.”_ ## 14. The counsel for the appellants submitted that **CRL.A.No.352 OF 2005** **10** there is absolutely no evidence to prove that the 1[st] appellant was in conscious possession of the contraband article. Admittedly, the 1[st] appellant was not present at the time of the alleged seizure. Simply because the 1[st] appellant is the husband of 2[nd] accused there is no presumption that the appellant is in conscious possession of the contraband article. Moreover, it is also to be noted that independent witness examined in this case deposed that the contraband article is seized from the house and the accused are residing in the shed near the house. This Court in _**Suresh v. State of Kerala [2020 (3) KLD 125]**_ discussed this point in detail. The relevant Paragraph is extracted hereunder :- _13. The point to be decided is, even if we accept the entire prosecution case whether it can be presumed that the accused was in possession of the illicit liquor. "Possession" is not defined in the Abkari Act. It is well settled by precedents that to constitute possession, the prosecution must prove that the person who is alleged to be in possession of a contraband article has dominion or control over such article. In this case, the Excise Officials found that the accused was lifting a can from a pond, which is situated in the property of PW3. Except_ **CRL.A.No.352 OF 2005** **11** _for the act of lifting the can from the pond, no other overtact is alleged against the accused in this case. The prosecution has not even a case that the accused was perplexed when he saw the Excise Officials. So the evidence available in this case is that the accused was lifting a can from a pond which belongs to a third party. Admittedly, PW3 is the owner of the pond from where this can was taken by the accused. Simply because there is evidence to show that the accused was found lifting the can from a pond belong to PW3 it will not prove "possession". Touching or lifting a contraband article from an open pond by an accused without any other overtacts will not amount to possession. To prove possession, dominion or control over the property is necessary. Hence it cannot be concluded that the accused was in possession of the contraband articles. Admittedly, the pond is situated in an open property. If a can is seen in a pond, a person may even take out the same because of curiosity. He may be a thief or an ordinary person trying to take out a strange article seen in a pond. In this case, the admitted case of the prosecution is that the accused lifted the can from the pond. I don't think that the same amounts to either physical/actual possession or even constructive possession of illicit liquor._ 15. Admittedly, the inventory of this case is prepared by PW6 who is a Additional Sub Inspector of Excise. He is not an authorised person to prepare an **CRL.A.No.352 OF 2005** **12** inventory as per Section 53 A of the Abkari Act. In _**Chandran v. State [2016 (4) KLT 727]**_ this Court considered the point in detailed. The relevant Paragraph is extracted hereunder :- “ _10. Sub section (1) of Section 53A of the Abkari Act provides that the authorised officer under Section 53A of the Abkari Act is the authorised officer referred to in Section 67B of the Abkari Act. Section 67B provides that the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of an Assistant Excise Commissioner. S.R.O. No.671/75 provides that the Assistant Commissioners in charge of Excise Divisions are authorised officers under Sub Section (1) of Section 67B of the Abkari Act for the purpose of Section 67B within their respective jurisdiction. In this case, PW1 was admittedly not an authorised officer under Section 67B of the Abkari Act. Therefore, he was not an authorised officer competent to prepare the inventory under sub section (2) of section 53A of the Abkari Act. Since Ext.P7 (a) was prepared by an officer not authorised under the Abkari Act, Ext.P7(a) cannot be acted upon as the same is patently illegal. When Ext.P7(a) cannot be acted upon, the entire contraband should have been produced before the court. However, in this case, the contraband articles were not produced before the court and instead of that, the prosecution relied on Ext.P7(a) inventory,_ **CRL.A.No.352 OF 2005** **13** _which is patently illegal and consequently, the revision petitioner is entitled to acquittal.”_ In the light of the above discussions, I think the appellants in this case are entitled the benefit of doubt. Therefore this Criminal Appeal is allowed. (i) The conviction and sentence imposed on the 1[st] appellant is set aside. (ii) The sentence of imprisonment imposed on the 2[nd] appellant is abated. (iii) The sentence of fine imposed on the 2[nd] appellant is set aside. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** VPK